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In the Matter of of N.J.A.C. 5:96 the New Jersey Affordable Housing

SUPREME COURT OF NEW JERSEY

Docket No. 67,126

the Adoption ON PETITION FOR CERTIFICATION and 5: 97 by FROM THE SUPERIOR COURT OF NEW Council on JERSEY, APPELLATE DIVISION

DOCKET NO. A·-5382-07T3 and A-90/91/92/93/94

On Appeal from the Council on Affordable Housing

Sat below: Hon. Stephen Skilliman Hon. Jose L. Fuentes Hon. MariaL P. Simonelli

Brief of Proposed Amici Curiae New Jersey State Conference of the National Association for the

Advancement of Colored people and Latino ]l,ction Network

On the Brief: Lawrence S. Lustberg, Esq. Eileen M. Connor, Esq.

Lawrence S. Lustberg, Esg. Gibbons P.C. One Gateway Center Newark, New Jersey 07102-5310 973-596-4731

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................. ..... " ii

STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

ARGUMENT ...................................................... 4

I. AT ITS CORE, THE MOUNT LAUREL DOCTRINE TARGETS RESIDENTIAL SEGREGATION AS A KEY FACTOR IN THE PERPETUATION OF RACIAL INEQUALITY IN NEW JERSEY .......... 7

A. Introduction .......................... .............. 7

B. The Context of the Mount Laurel Litigation Suggests that the Eradication·of Racial Segregation Is a Goal of the Doctrine .............. 14

II. MOUNT LAUREL I CORRECTLY RECOGNIZED THAT EXCLUSIONARY ZONING EXACERBATES RACIAL SEGREGATION AND THE MOUNT LAUREL DOCTRINE HAS REDUCED SEGREGATION IN THOSE AREAS WHERE IT HAS BEEN SUCCESSFULLY IMPLEMENTED .............. 21

A. Exclusionary Zoning and Racial Segregation in New Jersey ........................................... " 22

B. Mount Laurel's Mandate That All Corrununities Provide A Fair Share Of The Stat~ s Affordable Housing Need Has, Where Implemented, Lessened Racial Segregation And Improved Access To Communities Of Opportunity For Minority Communities ........................................ 27

1. Mount Laurel Township ......................... 29

2. West Windsor Township ....................... " 32

3. Ethel Lawrence Homes ...... ' .................. " 36

III. THE MOUNT LAUREL DOCTRINE CONTINUES TO BE NECESSARY TO ADDRESS ONGOING SEGREGATION IN NEW JERSEY TODAY ......... 43

A.. The Mount Laurel doctrine has not been fully or consistently implemented in New Jersey to date ..... 43

B. Housing segregation is a continuing and persistent concern in New Jersey ................... 47

IV. "GROWTH SHARE" MUST BE REJECTED BECAUSE IT VESTS UNFETTERED DISCRETION IN THE VERY SAME MUNICIPALITIES THAT HAVE PROVEN HOSTILE TO OPENING THEIR COMMUNITIES TO NEW JERSEYANS OF ALL RACES AND CLASSES ............... 50

CONCLUSION ................................................. " 56

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TABLE OF AUTHORITIES

Pagels)

CASES

Buchanan v. Warley, 245 U.S. 60 (1917) ......................................... 21

David v. Vesta, 45 N.J. 301 (1965) 14, 15, 18, 22

DeSimone v. Greater Englewood Housing Corp. No.1, 56 N.J. 428 (1970) ......................................... 16

Fair Share Housing Center, Inc. v. Township of Cherry Hill, No. L-042750-85PW and No. L~04889-01 (Sup. Ct. L. Div.) ..... 3

In re N.J.A.C. 5:94 and 5:95, 390 N.J. Super. at 68 ............................•......... 51

In re N.J.A.C. 5:96 and 5:97, 416 N.J. Super. 462 (App. Div. 2010)

In re Petition for Substantive Certification Filed by the Township of Warren,

4, 50

132 N.J. 1 (1993) .......................................... 16

In re Six Month Extension, 372 N.J. Super. 61 (App. Div. 2004) ........................ 45

In re Township of Denville, 247 N.J. Super. 186 (1991) .............................. 3, 46

In re Township of Warren, 247 N.J. Super. 146 (1991) ................................. 46

Levitt & Sons v. Div. Against Discrimination in the State Dep't of Educ., 31 N.J. 514 (1960) ................................. 15, 16, 22

Shelley v. Kraemer, 334 U.S. 1 (1948) ........................................... 8

Southern Burlington Laurel, 92 N.J. 158 (1983)

County NAACP v. Township of Mount

Southern Burlington NAACP v. Township of Mount Laurel,

passim

67 N.J. 151 (1975) ..................................... passim

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Toll Brothers v. Township of West Windsor, 173 N. J. 502 (2002) .................................... 33, 45

Williams & Norman, 22 Syr. L. Rev. at 476 ............................. 22, 24, 55

Wish & Eisdorfer, 27 Seton Hall L. Rev. 1268 (1997) .......................... 38

STATUTES

N.J.S.A. 18:25-1 ............................................. 15

N.J.S.A. 52:27D-301 to -329 ............................... 1, 44

N.J.S.A. 52:27D-304 (c) - (d) ............................ ~ ...... 19

N.J.S.A. 52:27D-307 (c) (1) .................................... 44

N.J.S.A. 52:27D-307(c) (2) .................................... 44

N. J. S . A. 52: 2 7D - 311 (b) ....................................... 44

N.J.S.A. 52:27D-312 .......................................... 46

OTHER AUTHORITIES

Andrew Jacobs, Justices Pondering Old Barriers in Housing, N.Y. TIMES (Nov. 28, 2001) ................................... 17

Andrew Wiese, PLACES OF THEIR OWN: AFRICAN AMERICAN SUBURBANIZATION IN THE TWENTIETH CENTURY 227(2004) ............................... 22

Anthony DePalma, Mount Laurel: Slow, Painful Progress, N.Y. TIMES (May 1,1988) ......................................... 17

Camille Zubrinsky Charles, The Dynamics of Racial Residential Segregation, Ann. Rev. Sociol. v. 29, 176-191 (2003) ..................................................... 26

Campbell Gibson and Kay Jung, united States Census Bureau, Historical Census Statistics on Population Totals by Race, 1970 to 1990, and by Hispanic Origin, 1970 to 1990 (2002) 49

David L. Kirp, et al., OUR ToWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA (1995) .............................................. 14

David W. Chen, Slouching Toward Mount Laurel, N.Y. TIMES (March 31, 1996) ... 18

Douglas Massey and Rebecca Denton, AMERICAN APARTHEID 7 (1993) .... 8

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Douglas S. Massey, Segregation and Stratification: A Biosocial Perspective, THE DUBOIS REVIEW 1: 1-19 (2004) ................................ 8

Federal Housing Authority, Underwriting Manual, Part II, Sec. 9 (1938) ............................................... 8

john a. powell, Racial Segregation in Housing, 27 Seton Hall L. Rev. 1369, 1377-78 (1997) .......................... 12

john a. powell, The Fair Housing Act After 40 Years: Continuing the Mission to Eliminate Housing Discrimination and Segregation, 41 Ind. L. Rev. 605 (2008) ................. 7

John Hasse, et al., Evidence of Persistent Exclusionary Effects of Land Use Policy within Historic and Projected Development Patterns in New Jersey: A .Case Study of Monmouth and Somerset Counties 18, 20 (June 2011) .......... 53

Jonathan Rothwell & Douglas Massey, The Effect of Density Zoning on Racial Segregation in U.S. Urban Areas, Urban Affairs Review, vol. 44 n. 6, 779-806 (2009) .......•....... 25

Jonathan Rothwell, Racial Enclaves and Density Zoning: The Comparative Segregation of Racial Minorities in the United States, Social Science Research Network, Working Paper 1161162 (2009) ............................................. 26

Jorge Duany, BLURRED BORDERS: TRANSNATIONAL MIGRATION BETWEEN THE HISPANIC CARIBBEAN AND THE UNITED STATES (2011) .................... 49

Melvin L. Oliver & Thomas M. Shapiro, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY 33 ( 1995) ................... 8

Naomi Bailin Wish & Stephen Eisdorfer, The Impact of Mount Laurel Initiatives, 27 Seton Hall L. Rev. 1268, 1276 (1997) ..................................................... 18

New Jersey Dep't of Transportation, Route 1 Regional Growth Strategy Final Report 6 (Sept. 2010) ................... 52, 53

Norman Williams, Jr. & Thomas Norman, Exclusionary Land Use Controls: The Case of North-Eastern New Jersey, 22 Syr. L. Rev. 475 (1970) ............................................ 22

Norman Williams, Jr., AMERICAN LAND PLANNING LAW vol. 8, 733-36 (2004) ..................................................... 21

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Paul A Jargowsky, Brookings Inst., Stunning Progress, Hidden Problems: The Dramatic Decline of Concentrated Poverty in the 1990s 3 (2003) ........................... 13

Rebecca Casciano & Douglas Massey, Neighborhood Disorder and Anxiety Symptoms: New Evidence from a Quasi-Experimental Study, SSRN Working Paper 1865238 (June 2011) . 37

Rebecca Casciano and Douglas Massey, Neighborhood Disorder and Individual Economic Self-Sufficiency: New Evidence from a Quasi-Experimental Study, SSRN .Working Paper 1865235 (June 2011) ........................................ 38

Rebecca Casciano and Douglas Massey, School Context and Educational Outcomes: Results from a Quasi-Experimental Study, SSRN Working Paper 1865232 (June 2011) .............. 40

Rebecca Cohen, Center for Housing Policy, The Impacts of Affordable Housing on Health: A Research Summary (May 2011) ...................................................... 13

Report of the National Advisory Commission on Civil Disorders 1 (1968) ......................................... 15

Rima Wilkes & John Iceland, Hypersegregation in the Twenty-First Century, DEMOGRAPHY 41:23-26 (2004) ..................... 8

Robert M. Fogelson, BOURGEOIS NIGHTMARES: SUBURBIA 1870-1930 (2005) ............... ........... '" ......................... 21

Rolf Pendall, et al., The Brookings Institute, From Traditional to Reformed: A Review of the Land Use Regulations in the Nation's 50 Largest Metropolitan Areas (2006) ..................................... , ................ 25

Rolf Pendall, Local Land-Use Regulation and the Chain of Exclusion, J. of the Am. Planning Assoc. 66:125-42 (2000) .. 25

Sheryll Cashin, THE FAILURES OF INTEGRATION: How RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM 3 (2004) .................... , ..... 17

United Way of Morris County, Introducing ALICE: Asset Limited, Income Constrained, and Employed 10 (2009) ........ 12

William Julius Wilson, The Truly Disadvantaged (1987) ........ 13

REGULATIONS

N.J.A;C. 5:96 .............................................. 1, 3

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N.J.A.C. 5:97 .......................................... 1, 3, 27

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STATEMENT OF INTEREST

Proposed amici curiae New Jersey State Conference of the

National Association for the Advancement of Colored People

("NAACP NJ") and Latino Action Network ("LAN"), on behalf of

their members, submit this brief in support of the parties

challenging N.J.A.C. 5:96 and 5:97. Amici NAACP NJ and LAN

respectfully urge this Court to reject the regulations of

Council on Affordable Housing ("COAH"), and specifically their

use of a "growth share" methodology, as insufficient to ensure

that the Mount Laurel doctrine and the New Jersey Fair Housing

Act of 1985, N.J.S.A. 52:27D-301 to -329, will in fact open

communities of opportunity in New Jersey to those, such as

African Americans and Latinos, who are currently excluded from

them.

NAACP NJ and LAN share a vision of New Jersey in which

people of all races and ethnicities live together in integrated

communities and in which rich and poor are not isolated from

each other, but live as neighbors sharing schools, parks, town

halls, churches, and institutions of government. Therefore,

NAACP NJ and LAN have in interest in seeing that the core

principles of the Mount Laurel doctrine are preserved and given

full effect. That doctrine, first pronounced by this Court in

Southern Burlington NAACP v. Township of Mount Li3iurel, 67 N.J.

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151 (1975) ("Mount Laurel I"), provides that local authority to

enact zoning legislation, set· forth in Article I, section 6,

paragraph 2 of the New Jersey Constitution, must be exercised in

favor of the "general welfare" and that such general welfare is

harmed by low-density, exclusionary zoning regulations that

effectively prevent the construction of affordable housing. But

beyond this tenet, the Mount Laurel doctrine stands for the

proposition that the general welfare is disserved by racial

segregation in our communities.

Ensuring access to affordable housing and decreasing racial

segregation is an integral part of the organizational missions

of both amici. The NAACP NJ furthers the work of the NAACP in

New Jersey. The NAACP, founded in 1909, is the nation's oldest

and largest civil rights organization. Its mission is to ensure

the political, education, social and economic equality of all

citizens of the United States, to remove all barriers of racial

discrimination, and to inform the public of the adverse effects

of racial discrimination and to seek its elimination. To that

end, the Southern Burlington and Camden County branches of the

NAACP have been plaintiffs in the litigation against Mt. Laurel

Township which has resulted in this Court's landmark decisions

in Mount Laurel I and Southern Burlington County NAACP v.

Township of Mount Laurel, 92 N.J. 158 (19133) ("Mount Laurel

I I") . Likewise, the Morris County Branch of the NAACP sought

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enforcement of the Mount Laurel doctrine against Denville, see

In re Township of Denville, 247 N.J. Super. 186 (1991), and the

Southern Burlington and Camden Branches are currently plaintiffs

in pending litigation against Cherry Hill Township. See Fair

Share Housing Center, Inc. v. Township of Cherry Hill, No. L-

042750-85PW and No. L-04889-01 (Sup. Ct. L. Div.).

The Latino Action Network, founded in 2010, works to

advance the key policy agendas affecting its members, one of

which is to ensure that affordable housing is available to

Latinos in communities with access to educational and economic

opportunities. LAN creates one voice for all Latinos in New

Jersey. It is a grassroots coalition oj: individuals and

organizations that are committed to engaging in collective

action at the local, state, and national level in order to

advance the equitable inclusion of the diverse Latino

communi ties in all aspects of society. .Its members include

parents, community leaders, student leaders, religious leaders,

law enforcement

professionals.

professionals, entrepreneurs, and business

Together, NAACP NJ and LAN submit this brief in order to

assist the Court in evaluating N. J.A. C. 5: 96 and 5: 97 in light

of the objective of desegregation that is such a critical part

of the Mount Laurel doctrine. . The brief incorporates the work

of leading demographers and statisticians, as well as social

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scientists versed in the adverse impacts of racial segregation

in individuals and communi ties. Their analyses reveal that,

while Mount Laurel has resulted in important progress in New

Jersey, as communities of opportunity have become more open and

diverse, the pattern of racial segregation and the isolation of

minori ty communi ties into "urban ghettoes," Mount Laurel II, 92

N.J. at 209, nonetheless persists, perpetuated by the continuing

widespread use of exclusionary zoning. Thus, continued

commitment by this Court is essential if the goal of Mount

Laurel to reduce and eliminate segregation is to be realized.

For the reasons set forth below, as well as those advanced by

Fair Share Housing Coalition, New Jersey Builders Association,

the New Jersey Chapter of NAIOP Commercial Real Estate

Development Association, and MTEA, Inc" the Court should

decline to adopt the "growth share" methodology proposed by the

Council on Affordable Housing I "COAH") , which will stifle

further progress in ending racial segregation and isolation.

The Court

ARGUMENT

should reject the n growth share n approach

embodied in the COAH regulations. That approach, which ties a

communi ty' s obligation to provide affordable housing to its own

policies on future residential development, Bee In re N. J.A. C.

5:96 and 5:97, 416 N.J. Super. 462, 474 lApp. Div. 2010), allows

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a municipality complete discretion over whether and to what

extent it is obligated to produce affordable housing.

History shows that the exercise of such municipal

discretion will inevitably have devastatin9 effects on the

ability of African American and Latino individuals and families

to live in communities of opportunity, which are rich in

educational, economic, and other resources. Such effects would

be completely inconsistent with a fundamental purpose of the

Mount Laurel doctrine, which is, as discussed in Part I, the

reduction of racial segregation, which serves to isolate and

disadvantage communi ties of color in New Jersey. Indeed, even

today, these communities remain highly segregated and

concentrated in areas with low resources and few economic

opportunities. Although the overt racial discrimination that

produced this pattern of residential racial segregation is no

longer accepted as a matter of law, the effects of such

discrimination remain. Their continuation is attributable, as

explained in Part II, largely to the use of exclusionary zoning,

or zoning regulations that set minimum lot or housing sizes, and

limit the development of affordable housin,! for lower-income

families and others.

The use of exclusionary zoning became widespread in New

Jersey in the 1960s, and remains widely used today. Such

exclusionary zoning is closely linked, as a matter of fact and

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as discussed in Part II. A, to racial segreg·ation in housing.

The Mount Laurel doctrine counteracts the effects of

exclusionary zoning on the availability of affordable housing,

and on the degree of racial segregation in New Jersey, by

requiring municipalities to refrain from such practices, "at

least to the extent of the municipality's fair share" of the

present and prospective need for affordable housing in the

region. Mount Laurel .I, 67 N.J. at 174. Where the Mount Laurel

mandate has been implemented, it has proven to reduce racial

segregation, and produce marked improvements in the lives of

those, many of whom are African American and l,atino, who are, as

a result, afforded the opportunity to move from blighted areas

to communities of opportunity, or to remain in communities where

they grew up but otherwise would have had to leave.

are discussed in Part II.B.

These gains

Yet, as Mount Laurel has been inconsistently and only

incompletely implemented over the years in New Jersey, as

discussed in Part III. A, it has not been able to overcome the

continuing widespread use of exclusionary zoning, and· housing

segregation remains a critical issue in New J·ersey today. Part

III.B demonstrates that, in line with research linking

excluSionary zoning and racial segregation, New Jersey today is

more segregated, and has desegregated less quickly, than the

nation as a whole.

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Despite this need for a continued commitment to the

principles of Mount Laurel, the "growth share" methodology

adopted by COAH threatens any continuation of gains of the type

seen in municipalities from Mount Laurel to west Windsor. Part

IV establishes that current exclusionary zoning regulations will

slow residential growth in many areas of New Jersey,

particularly in those areas that have seen the largest increase

in jobs in recent decades, and where this growth is projected to

continue. More to the point of this brief, under the growth

share approach, existing exclusionary zoning will have

predictable negative results for the racial desegregation of New

Jersey, and for those most in need of access to communities of

opportunity, namely African American and Latino populations,

which are so dramatically overrepresented amon~, the urban poor.

I. AT ITS CORE, THE MOUNT LAUREL DOCTRINE ~~ARGETS RESIDENTIAL SEGREGATION AS A KEY FACTOR IN THE PERPETUATION OF RACIAL INEQUALITY IN NEW JERSEY.

A. Introduction

In the words of one pro~inent social scientist, "[ N ousing

lies at the very heart of a system of institutional relations

that reproduce inequality." john a. powell, The Fair Housing

Act After 40 Years: Continuing the Mission to Eliminate Housing

Discrimination and Segregation, 41 Ind. L. Rev. 605 (2008).

Residential segregation has been described as the "structural

linchpin of American racial inequality, " Melvin L. Oliver &

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Thomas M. Shapiro, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL

INEQUALITY 33 (1995), and "fundamental to" the "status" of African

and Latino Americans and "the origins of the urban underclass,"

Douglas Massey and Rebecca Denton, AMERICAN APARTHEID 7 (1993). The

days of overt legal discrimination in the hom;ing market may be

gone, see, e. g. , Shelley v. Kraemer, u.S. 1 (1948)

(preventing court enforcement of racially restrictive covenants

in deeds), Federal Housing Authority, Underwr.iting Manual, Part

II, Sec. 9 (1938) (recommending racial restrictions in lending

to prevent, in part, schools from being "attended in large

numbers by inharmonious racial groups") , but residential

segregation continues. Today, nearly half of all urban African

Americans live under conditions of hypersegre':ration, and thirty

percent live under conditions that can be described as "high"

segregation. Douglas S. Massey, Segregation and Stratification:

A Biosocial Perspective, THE DUBOIS REVIEW 1:1-19 (2004). Latinos

experience hypersegregation in major metropolitan areas as well,

including the New York-Northern New Jersey area. Rima Wilkes &

John Iceland, Hypersegregation in the Twenty-First Century,

DEMOGRAPHY 41: 23 -26 (2004). Furthermore, African Americans and

Latinos are more likely than other groups to live in

neighborhoods of concentrated poverty. CenEms data from 2000

shows that, nationwide, nearly three out of four people living

in high poverty neighborhoods were African American or Latino.

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Id. at 5 (African Americans accounted for 39 percent of the

residents of high-poverty neighborhoods, and Latinos for 29

percent) .

Although New Jersey has undergone demographic shifts in the

past 30 years, making it a more diverse state today than it was

in 1980,' concentration of African Americans and Latinos in

densely populated areas with relatively poor economic and

educational resources continues. Thus, a review of data from

New Jersey reveals that African Americans and Latinos are highly

concentrated, and that although this concentration has decreased

gradually over time, these communities remain disproportionately

located in a few, densely populated areas. 2. Moreover, the

municipalities that have a high concentration of African

According to data collected by the united States Census Bureau, the population of New Jersey grew by 19.4 percent between 1980. and 2010, from 7,364,823 to 8,791,894. See Ex. 1. The African American population grew at a greater rate (30.7 percent) than the overall population, from 907 f 554 in 1980 to 1,186,433 in 2010, increasing its share of the overall population of New Jersey from 12.3 percent in· 1980 to 13.5 percent in 2010. The Latino population increased.much more dramatically in this same time period, growing by 216.2 percent, from 491,883 in 1980 to 1,555,144 in 2010, increasing its share of the overall population of New Jersey from 6.7 percent in 1980 to 17.7 percent in 2010. In line with -these trends, the white (non-Hispanic) population share of the state has· decreased from 79.1 percent in 1980 to 59.3 in 2010.

According to data collected by the United States Census . Bureau 1 the population .of New Jersey grew by 19.4 percent between 1980 and 2010 , from 7 , 364,823 to 8,791 , 894. The African American populat.ion grew at a greater rate (30.7 percent) than the overall population, from 907,554 in 1980 to 1,186 , 433 in 2010 , increasing its share of the overall population of New Jersey from 12.3 percent in 1980 to 13.5 percent in 2010. The Latino population increased much more dramatically in this same time period, growing by 216.2 percent, from 491,883 in 1980 to 1 , 555,144 in 2010 , increasing its share of .the overall population of New Jersey from 6.7 percent in 1980 to 17.7 percent in 2010. In line with these trends 1 the white (non-Hispanic) population share of the state has decreased from 79.1 percent in 1980 to 59.3 in 2010. See Ex. 1.

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Americans or Latinos are among the lowest in the state for per-

capita tax base. The 34 municipalities with the highest

percentage of African American residents in 2010 that, taken

together, account for 50 percent of the state's total African

American population had a median per capita property tax base of

$53,795, compared with the median per capita property tax base

of the rest of the state, which is over $140,.000. 3 See Ex. 9.

The 39 municipalities with high concentrations of Latinos

accounting for fifty percent of the state's total Latino

population similarly had strikingly lower median per capita tax

basis than did the rest of the state. 4 See Ex. 10 (showing

median per capita· property tax base of 39 municipalities as

$84,055 compared with rest of state at over $140,000).

Moreover, African Americans and Latinos comprise a higher

percentage of the population in municipalities that .measure

highly in indicators of socioeconomic distress, and are

significantly underrepresented in areas of New Jersey

characterized by economic prosperity. The New Jersey Department

of Education has organized all school districts in the state

into "district factor groups" based up6n relative socioeconomic

status as measured using six variables: percent of adults with

3 These same municipalities lost 2 I 435 private sector jobs between 1999 and 2007, while the rest of the state gained 133,759 jobs over the same period. See Ex. 9. <I These same municipalities 'lost 18,911 private-sector jobs between 1999 and 2007 I while the balance of the state gained 150,217 private sector j cbs over the same period. See Ex. 10.

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no high school diploma; percent of adults with some college

education; occupational status; unemployment rate; percent of

indi viduals in poverty; and median family income. 5 Thus, a

community with a school district categorized as district factor

A, the lowest possible ranking, is among the most resource-poor

in the state.

Data from the most recent census shows that the total

population of all municipalities with schools rated as district

factor A is 1,484,695. See Ex. 3. Of this total population,

535,537 are African American, and 282,007 are Latino. Id. This

means that municipalities served by district factor A schools

are 36 percent African American and 18.9 percent Latino. Id.

The combined African American and Latino population of these

towns is fifty five percent. Id. The over-representation of

African Americans and Latinos in the most resource-poor of New

Jersey's communities is striking: the percentage of the

statewide population that is African American is just 13.5, and

Latinos make up 17.7 percent of the state's population, see Ex.

1, meaning that they too are overrepresented in the most

resource-poor municipalities in New Jersey. Conversely, in

towns served by district factor J school districts, African

Americans and Latinos are underrepresented. Data from the most

5 An explanation of the New Jersey Department of Education's District Factor Group methodology and categorization of districts may be found at http://www.state.nj.us/education/finance/sf/dfg.pdf.

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recent census indicates that the total population of towns with

district factor J schools is 278,483, and that just 6719 of

these residents, or 2.4 percent, are African American, and

11,666 are Latino, or 4.2 percent. Ex. 4.

The isolation of minority communities in densely populated

urban areas plays an "intricate role" in undermining minority

cormnuni ties'

.access to social and economic benefits the maj ori ty of American society ha.s been afforded. Lack of adequate education opportunities, isolation from adequate housing, inferior public services, declining housing values in isolated, low-income communities of color, and isolation from decent job markets are merely an introduction to the symptoms of this problem.

[j ohn a.. powell, Racial Segregation in Housing, 27 Seton Hall L. Rev. 13.69, 1377-78 (1997).]6

ThUS, there is a geography of opportunity, in which one's access

to jobs and quality schooling on the one hand, and exposure to

environmental risk factors, crime, and poverty are largely

determined by where one lives. Patterns of residential

segregation and inequality give rise to the social isolation and

6 A recent study of Morris County emphasizes how these disparities impact lower-income workers, who are disproportionately Africa.n American and Latino. See United Way of Morris County, Introducing ALICE: Asset Limited, Income Constrained, and Employed lO (2009), available at http://www.uwrnorris.org/documents/ALICE%20REPORT%208.05.09.pdf. The study found that Morris County has the highest cost of housing in New Jersey I forcing more lower-income individuals to pay a large portion of their income towards housing, and move farther away from their j cbs I and that a highly disproportionate number of workers in this position were Latino. Id.

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concentration of minority communities with reduced access to

economic and educational networks and heightened exposure to

social ills. See generally William Julius Wilson, THE TRULY

DISADVANTAGED H 9 8 7) • This social inequality is perpetuated as

isolated communities lack inputs of social capital to either

improve conditions or support relocation. Iel. Social science

literature suggests that families that can only find affordable

housing in areas with very high poverty levels are prone to

greater psychological distress and exposure to violent or

traumatic events. 7 See Rebecca Cohen, Center for Housing Policy,

The Impacts of Affordable Housing on Health:· A Research Summary

(May 2011) (identifying studies) .

Thus, for African American and Latino communities, a

critical factor in bringing about improved standing and better

outcomes for their members is the reduction in the clustering of

Latino and African American individuals and families in

.communities with concentrated poverty, poor schools, and little

access to economic jobs. The Mount Laurel doctrine must be

viewed in this context.

7 A neighborhood is considered to be high poverty if more than 40 percent of the population lives in poverty as measured by the federal poverty standard. Paul A' Jargowsky, Brookings lnst., Stunning Progress, Hidden Problems: The Dramatic Decline of Concentrated Poverty in the 19908 3 (2003), available at http://www.brookings.edu/-/media/Files/rc/reports/2003/05demographics_jargows ky/jargowskypoverty.pdf.

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B. The Context of the Mount Laurel Litigation Suggests that the Eradication of Racial Segregation Is a Goal of the Doctrine.

That residential segregation promotes racial inequality and

impedes the general welfare of the State has been consistently

recognized from the very beginning of the Mount Laurel

litigation. The lawsuit was originally brought by a group of

African-American parishioners of the Jacob's Chapel A.M.E.

Church in Mount Laurel Township, see David L. Kirp, et al., OUR

TOWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA (1995), and other members

of the South Jersey African American and Latino communities, see

Mt. Laurel I, 67 N. J. at 159. The plaintiffs sought to build

affordable garden apartments in the community in which they

worked and worshiped, but the town's single-lot zoning

restrictions prevented construction of anything other than

single family houses on acre lots. Id.

Rej ecting the town's zoning ordinances, the Court observed

that "a zoning enactment which is contrary to the general

welfare is invalid," 67 N. J. at 175. The express language of

Mount Laurel I identified the "dangers of economic segregation,"

id. at 177, that result from exclusionary zoning, as well as

that exclusionary zoning prevented racial desegregation. Thus,

in Mount Laurel I, the Court took judicial notice of the fact

that exclusionary zoning practices of suburban municipalities

increased racial segregation by limiting housing opportunities

- 14 -

away from the central city, where minorities were clustered. 67

N.J. at 159. Later, in upholding and strengthening the doctrine

in Mount Laurel II, the Court specifically referenced "urban

ghettoes" and cited studies on the prevalence of racial

segregation in New Jersey. 92 N.J. 159, 224-25 (1983) The

record before the Court indicated that racial segregation and

isolation in impoverished areas led to social unrest both

nationally, see 92 N.J. at 210, n.5 (citing Report of the

National Advisory Corrunission on Civil Disorders 1 (1968) for

conclusion that suburban exclusion is "one of the principal

causes making America 'two societies, one black, one white

separate and unequal' "), and in New Jersey, see id. (citing N.J.

Department of Community Affairs, State Development Guide Plan

85-85 (1980) for view that exclUSionary zoning caused a "vicious

cycle" of urban decay and excluded urban poor from suburbs) .

Even before the Mount Laurel litigation, however, the Court

had made clear that New Jersey's Law Against Discrimination,

N.J.S.A. 18:25-1 et seq., precludes discrimination in the

public, see Levitt & Sons v. Div. Against Discrimination in the

State Dep't of Educ., 31 N.J. 514 (1960), and private, see David

v. Vesta, 45 N.J. 301 (1965), housing markets. In these

decisions as well as others, which serve as an important

backdrop to the Mount Laurel decisions, the Court recognized the

link between racial inequality and the lack of affordable

- 15 -

housing, as well as the potential for zoning regulations to

thwart progress towards racial desegregation.

Specifically, in Levitt & Sons, the Court noted that New

Jersey had a "pressing need for adequate housing for minority

groups,n in order to "affo~ ~ the opportunityn for "[~ any more

in these groups to take an ac.tive and beneficial role in

the cultural, social and economic life of the community, n 31

N.J. at 534, and that the "lack of adequate housing for minority

groups, an effect of discrimination in housing, causes crime-

and disease-breeding slums. n 31 N.J. at 531. Ten years later,

and just five years prior to the Mount Laurel I decision, the

Court approved a zoning variance necessary for the construction

of affordable housing because

patterns of racial segregation

welfare of the community.n

"breaking the long-standing

will promote the general

DeSimone v. Greater Englewood

Housing Corp. No.1, 56 N.J. 428, 441 (1970) (quoting local

Board's reasoning).

Since the Mount Laurel decisions, the link to this doctrine

and the need to promote racial desegregation in housing has been

consistently recognized. In In re Petition for Substantive

Certification Filed by the Township of Warren, 132 N. J. 1

(1993), the Court rejected COAH regulations that called for an

occupancy preference to be given to current residents. The

Public Advocate argued that such a regulation violated the anti-

- 16 -

segregation intent of the Mount Laurel doctrine, because given

existing racial segregation, the regulation would have the

effect of favoring white households for newly constructed

affordable housing units. Id. at 19. 8 The Court found that this

regulation was "incompatibl[ e]" with the legislative policies of

the Fair Housing Act, and noted that it was "particularly

incongruous that a regulation" implementing the Mount Laurel

doctrine "would itself be challenged as violating federal and

state [racial] anti-discrimination laws." Id. at 29.

Indeed, the Mount Laurel doctrine has been widely

understood as promoting racial integration, by critics and

proponents alike. Thus, residential integration of different

racial communities has been described as "the last plank in the

civil rights .revolution, " Sheryll Cashin, THE FAILURES OF

INTEGRATION: How RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM 3 (2004),

and the Mount Laurel decisions as "a pioneering set of rulings,"

Andrew Jacobs, Justices Pondering Old Barriers in Housing, N. Y.

TIMES (Nov. 28, 2001), which "stand for the effort to desegregate

New Jersey's many rings of suburban corruTLunities,1f Anthony

DePalma, Mount Laurel: Slow,Painful Progress" N.Y. TIMES (May 1,

1988); see also Naomi Bailin Wish & Stephen Eisdorfer, The

The Public Advocate cited statistics showing tha't for the Borough of Bloomingdale I African Americans and Latinos represented only 1.5 percent of the town's current population, although they constituted 20.9 percent of the region's residential population, and 50.5 percent of the region's low- and moderate-income housing population. 132 N.J. at 19.

- 17 -

Impact of Mount Laurel Initiatives, 27 Seton Hall L. Rev. 1268,

1276 (1997) (identifying as among the "identifiable goals" of

Mount Laurel the "ameliorat [ion) of racial and ethnic

residential segregation by enabling blacks and Latinos to move

from the heavily minority urban areas to white suburbs").

Meanwhile, those who have sought enforcement of Mount Laurel

have been met with resistance' similar to that experienced. by

other civil rights pioneers. For example, Ethel Lawrence, a

plaintiff in the original Mount Laurel action, and her family,

"received volumes of hate mail, had to change their phone number

three times and survived gunshots through the bedroom window."

David W. Chen, Slouching Toward Mount Laurel, N. Y. TIMES (March

31, 1996)

Further, even if one views the Mount l~aurel doctrine as

being primarily concerned with economic segregation, its effect

is felt largely by the African American and Latino communities

whose members are on average less wealthy than other groups in

New Jersey.

this point.

Census data for the years 2005-2009 demonstrates

Thus, the median household income for African

Americans in New Jersey during this time period, in 2009

inflation-adjusted dollars, was $46,139, welle below the median

income for all households in New Jersey, or $68,981, and less

than sixty percent of the median household income for white

(non-Hispanic) households, which was $77,475. During this same

- 18 -

time period, the median household income for Latinos was

$48,093, or sixty-two percent of the median white household

income.'

African Americans and Latinos are, then, overrepresented in

the income classes eligible for Mount Laurel housing, see

N.J.S.A. 52:27D-304(c)-(d) (defining income requirements for

low- and moderate-income housing) and among those who have the

most pressing housing needs. 'In 2000, among New Jersey

households classified as having a "very low" income -- less than

30 percent of the median family income in New Jersey 22.9

percent were African American and 16.6 percent were Latino,

whereas African Americans comprised only 13.6, and Latinos 13.3,

percent of the statewide population. In the "low" income

household group, defined as earning between 30 and 50 percent of

the median family income, African Americans represented 15.8

percent of all households, and Latinos 15.0 percent. And over

70 percent of all "low" and "very low" income African American

households, and over 80 percent of all "low" and "very low"

income Latinos were living in overcrowded or unaffordable

9 See Unit-ed States Census Bureau, 2005-2009 American Community Survey I available at http,//factfinder.census.gov/home/acs-pums_2009_5yr.htm1. The American Corrununity Survey defines "African American" as those identifying as single race, "and therefore excludes biracial African Americans, but does include African Americans who also identify as Hispanic or Latino, as the United States Census Bureau categorizes the former concepts as ethic, rather

·than racial identities. Latinos are defined as those identifying as single­race (white) and ethnically Hispanic or Latino. Households are categorized according to the ethnicity of the "householdet,U or the person in wh6se name the house is owned or rented. See http,//factfinder.census.gov/home/en/epss/g1ossary_h.htm1.

- 19 -

housing, or housing with. insufficient plumbing or kitchen

facilities: 10

Finally, it is also the case that census data indicate that

race and ethnicity are greater predictors of whether a person is

likely to live in an area with a high number of like people than

is economic status. The isolation index for New Jersey's poor

in 2010 was 21.4, meaning that the average poor person in New

Jersey was likely to live in a community that is 21.4 percent

poor. 11 See Ex. 2. In contrast, in 2010 the average African

American in New Jersey lived in an area that was 42.8 percent

African American, and the average Latino lived in an area that

was 40.2 percent Latino. Id. The poor are also less

concentrated in New Jersey's urban areas than are African

Americans and Latinos. For example, in 2010, the average

African American in Camden was likely to live in an area that

was 35.4 percent African American; the average Latino was likely

to live in an area that was 25.4 percent Latino, and the average

poor person was likely to live in an area tha.t was 20.8 percent

10 For statewide population percentages J see Ex. 1. Data on the representation of African Americans and Latinos in low and very low income households in New Jersey I and the housing needs of these groups I is drawn from a report by the Department of Community Affairs, which incorporates a special analysis of 2000 census data performed by the United States Department of Housing and Urban Development. See New Jersey Department of Community Affairs, 2009 Consolidated Plan, available at http://www.state.nj.us/dca/divisions/dhcr/anouncements/pdf/con_drafplan09.pdf

11 The isolation index indicates to what degree the average person in an area lives among people of the same race, e.g. a score of 70 on the isolation index means that the average person lives in an area ,that is 70 percent the same along a specified variable.

- 20 -

poor. Id. The numbers for Newark are 60.5, 39.1, and 22.9 for

these respective groups. Id. In other" words, the problem of

segregation, to which Mt. Laurel is directed, is even more

pronounced along racial lines than it is among economic ones,

and the resulting social disadvantages even more pressing.

II. MOUNT LAUREL I CORRECTLY RECOGNIZED THAT EXCLUSIONARY ZONING EXACERBATES RACIAL SEGREGATION AND THE MOUNT LAUREL DOCTRINE HAS REDUCED SEGREGATION IN THOSE AREAS WHERE IT HAS BEEN SUCCESSFULLY IMPLEMENTED.

Although governments have long been prevented from adopting

zoning laws that expressly discriminate on the basis of" race,

see Buchanan v. Warley, 245 U. S. 60 (1917), zoning nevertheless

carries the potential to be exercised in a discriminatory manner

or to preserve and perpetuate existing patterns in housing,

which themselves may have been influenced by discriminatory

practices. See Norman Williams, Jr., AMERICAN LAND PLANNING LAW vol.

8, 733-36 (2004) (describing adoption of racial zoning

ordinances explicitly designed to enforce racial separation

following migration of rural southern African Americans to

northern cities); Robert M. Fogelson, BOURGEOIS NIGHTMARES: SUBURBIA

1870-1930 (2005) (discussing racial motivation of housing policy

and restrictive covenants in twentieth century)

New Jersey's experience reflects exactly these concerns:

exclusionary zoning became widespread in New Jersey just as de

jure racial discrimination in the public and private housing

- 21 -

markets was declared illegal, and effectively limited the

production of affordable housing and thereby continued patterns

of racial segregation earlier established. Mount Laurel, where

enforced, has had marked success in addressin~j this harm, both

in reducing racial segregation in housing and in improving

access to communities of opportunity for minority communities.

A. Exclusionary Zoning and Racial Se!~regation in New Jersey

Even as this Court declared overt racial discrimination in

housing to be legally invalid, see Levitt & Bons, 31 N. J. 514

(1960) , David v. Vesta, 45 N.J. 301 (1965) , New Jersey

municipalities reacted by increasingly instituting exclusionary

zoning restrictions, which had the effect of perpetuating the

very housing patterns created by de jure discrimination. Thus,

between 1960 and 1967, more than 150 municipalities in New

Jersey changed their zoning to increase minimum lot sizes. See

Andrew Wiese, PLACES OF THEIR OWN: AFRICAN AMERICAN SUBURBANIZATION IN THE

TWENTIETH CENTURY 227 (2004) (discussing how these zoning rules

effectively blocked suburbanization for African Americans living

in New Jersey through apparently nonracial means). A 1970 study

by two prominent land use scholars, see Norman Williams, Jr. &

Thomas Norman, Exclusionary Land Use Controls: The Case of

North-Eastern New Jersey, 22 Syr. L. Rev. 475 (1970)

(hereinafter uWilliams & Norman N), and cited by the Court in Mt.

- 22 -

Laurel I, 67 N. J. at 172, demonstrated the extent to which

exclusionary zoning restricted the uses of land subject to

development in Morris, Somerset, Middlesex, and Monmouth

counties, 12 22 Syr. L. Rev. at 477, 79, which had "by far the

largest area of conveniently-located vacant land which is

available for future growth of both residence and employment,"

id., see also id. at 475 (observing that "in recent years most

of the desirable new jobs have been gravitating to" outer

suburban areas). Yet, in these four counties, only 3,000 acres

of a total 400,000 acres were zoned to permit the construction

of multiple dwellings, or the very garden apartments that Ethel

Lawrence and her fellow parishioners sought to build, id. at

485. Zoning in Somerset County allocated no land to such

development, id. at 486, and Middlesex allocated only just over

300 acres, id. at 487. This study constituted part of the

record that led the Court to conclude in Mount Laurel I that

exclusionary zoning practices "rende[ r] it impossible for lower

paid employees of industries [the municipalities] have eagerly

sought to live in the communi ties whe:ce they work." 67

N.J. at 172.

12 The Williams and Norman study defined exclusionary land use controls as those "which appear to interfere seriously with the availability of low- and moderate-cost housing where it is needed. /I 22 Syr. L. Rev. at 478-79. The six types of zoning regulations considered as "exclusionary" were minimum building size requirements I single- family restrictions I restrictions on the numbers of bedrooms, prohibition of mobile homes, frontage requirements, and lot size requirements. Id. at 483-84.

- 23 -

Indeed, the impact of the widespread use of exclusionary

zoning rules on the access of minority communit.ies to affordable

housing across the state was profound. See Williams .& Norman,

22 Syr. L. Rev. at 476 (observing that due to exclusionary

zoning, "the large concentration of low- income blacks is in our

central cities, while the white middle class: is increasingly

concentrated in the suburbs"). Nor was the relationship between

exclusionary zoning rules and segregation coincidental.

Planning and economic literature demonstrates a strong

relationship between the use of exclusionary zoning and a

jurisdictio~ s racial segregation. This literature supports the

principle that the Court intuitively recognized: exclusionary

zoning is causally linked to racial and economic segregation.

See Mount Laurel I, 67 N.J. at 159 (recognizing "the minority

group poor (black and Hispanic)" as a "category of persons

barred from so many municipalities by reason of restrictive land

use regulations"); see also Mount Laurel II, 92 N.J. at 210, n.S

(citing scholarly works and governmental commission publications

for the conclusion that exclusionary zoning causes concentration

of poverty in urban areas)

Thus, jurisdictions with low-density zoning regulations,

including those that require minimum lot sizes, set-back or

frontage requirements, or forbid multiple dwellings, are less

likely to have African American residents than are those without

- 24 -

such restrictions. Rolf Pendall, Local Land-Use Regulation and

the Chain of Exclusion, J. of the Am. Planning Assoc. 66: 125-42

(2000) . Anti"density zoning in metropolitan areas is also

associated with a higher concentration of African Americans in

the central city. Rolf Pendall, et al., The Brookings

Institute, From Traditional to Reformed: A Review of the Land

Use Regulations in the Nation's 50 Largest f.:1E'tropolitanAreas

(2006) .

Other studies have gone further to demonstrate not just

correlation, but causation between the use of exclusionary

zoning and segregation, by comparing patterns of segregation

with the use of exclusionary zoning, which differs greatly by

region. See Jonathan Rothwell & Douglas Massey, The Effect of

Densi ty Zoning on Racial Segregation in U. S. Urban Areas, Urban

Affairs Review, vol. 44 n. 6, 779-806 (2009) (hereinafter

"Rothwell & Massey"). Nationally, metropolitan areas that

resorted less to exclusionary zoning measures experienced

greater desegregation during the period 1980 to 2000. Thus,

desegregation was greatest in the South and West, which have

relatively fewer exclusionary zoning restrictions, and least in

the Northeast and Midwest, which

restrictions. Rothwell & Massey,

have

supra,

relatively

at 793.

more

Using

regression analysis, Rothwell and Massey showed that at any

point in time from 1990 to 2000, the variation among

- 25 -

metropolitan areas with respect to Black-White segregation and

Black isolation was strongly predicted by their relati ve

openness to housing construction, as embodied in maximum zoning

rules - - the greater the allowable density, the lower the level

of racial segregation. Id. at 801. A similclr analysis found

that exclusionary zoning has the same causal relationship to the

segregation of Latinos in a given area. See J·onathan Rothwell,

Racial Enclaves and Density Zoning: The Comparative Segregation

of Racial Minorities in the United States,

Research Network, Working Paper 1161162 (2009).

Social Science

Meanwhile, the

role of exclusionary zoning in causing racial segregation has

been buttressed by a body of social science research that

addresses and rejects alternative theories for racial

segregation, including objective differences in socioeconomic

status and personal preferences. See Camille Zubrinsky Charles,

The Dynamics of Racial Residential Segregation, Ann. Rev.

Social. v. 29, 176-191 (2003) (surveying literature testing and

rej ecting these hypotheses). Segregation of African-Americans

and Latinos continues despite their preferences for more

integrated neighborhoods.

In sum, as Mount Laurel recognized, requiring communities

to limit the use of exclusionary zoning that stands in the way

of providing affordable housing is necessary t:o decrease racial

- 26 -

segregation in New Jersey. Real life experience supports this

self-evident principle.

B. Mount Laurel's Mandate That All Cornmunities Provide A Fair Share Of The State's Affordabl,e Housing 'Need Has, Where Implemented, Lessened Racia,l Segregation And Improved Access To Communities Of Opportunity For Minority Communities.

Indeed, where changes to zoning based on Mount Laurel have

been implemented, measurable gains have been made in opening

communities of opportunity to moderate and low-income African

American and Latino households. Townships with Mount Laurel

developments are markedly less segregated today than they

otherwise would have been had Mount Laurel not mandated a

departure from existing exclusionary zoning regulations.

The most recent data available from COM! indicate that, to

date, 60,365 Mount Laurel affordable housing units have been

constructed in New Jersey. See Ex. 6. Multiplying this number

by 2.68, the average household size in New Jersey as of 2010,

see N.J.A.C. 5:97 App. A, this means that approximately 161,778

individuals live in newly constructed Mount: Laurel housing. 13

Data from COAH also indicate that over 160 towns have

13 Additionally I 14,932 units have been refurbished pursuant to local plans. See Ex. 6. This is yet another important result of Mount Laurel, which has served to maintain significant housing stock already occupied by lower- income households. That said, for the purposes of this analysis, which looks to demographic trends and the distribution of population, as well as the certified question of whether growth share will increase the amount of affordable housing available statewide, new construction is most relevant.

- 27 -

constructed over 100 Mount Laurel units each."4 See Ex. 6. The

result of this construction, while insufficient to overcome the

segregation that persists, has been profound: the lives of

individuals who have been able to move out of blighted areas and

into more resource-rich communities with economic and

educational opportunities have improved dramatically.

The experiences of two municipalities, Mount Laurel and

West Windsor, are instructive. There, Mount Laurel construction

has meaningfully affected the racial composition of the

communities in which it has been undertaken, reducing the level

of racial segregation that would otherwise be expected. These

communities enjoy strong job growth and educational

opportunities, thus making increased access for minority

communities particularly important. 15 Indeed, as a study of

residents in the Ethel Lawrence Homes, built in Mount Laurel

Township shows, such construction has improved educational

achievement and economic self-sufficiency for residents.

14 This figure excludes construction pursuant to a Regional Contribution Agreement. 15 For example, Mount Laurel added more private sector jobs between 1980 and 2010 than it did residents, 'as it gained 26,829 such jobs, as compared to its population growth of 24,250. Exhibit 5. Mount Laurel experienced the fifth highest growth in private sector jobs of any municipality in New Jersey. Id. And West Windsor is served by a school district classified by the Department of Education as district factor group J, the highest possible classification. See New Jersey Department of Education, District Factor Groups Report, available at http://www.state.nj.us/education/finance/sf/dfg.pdf.

- 28 -

1. Mount Laurel Township

In 1980, Mount Laurel had a total population of 17,614, and

was 92.8 percent white (non-Hispanic) See Ex. 1. African

Americans made up 4.6 percent of its population, and Hispanics

only .9 percent. 16 In 1983, addressing the issue of affordable

housing in Mount Laurel, the Court found that "[ nl othing really

has changed either in Mount Laurel or in its land use

regulations." Mount Laurel II, 92 N.J. at 296. Despite growth

of the commercial sector of town, and the growth in housing for

the wealthy, not one unit of lower-income housing had been

constructed. Id. at 296-97. On September 9, 1985, the town

entered into a consent decree under which it was obligated to

construct 950 units of affordable housing. Docket No. L-25741-

16 Consistent with the history of racial discrimination and exclusionary zoning discussed earlier I Mount Laurel was more highly integrated, at least for the African American population, in 1930 I when it was 17.6 percent African American, than in 1980. At this time, until the mid century, Mount Laurel had "rural characteristics, If Mount Laurel I at 159. With development and exclusionary zoning I came rising .costs of housing I such that at the time of Mount Laurel I, African Americans and Latinos were living in "substandard housing" or forced to move from town because they could not afford it. Id. at 159, n.3. The share of Mount Laurel's population attributed to African Americans steadily declined between 1930 and 1970, when it was at 3.27 percent, its lowest recorded level. This same pattern is consistent with overall demographic trends in New Jersey. For example, Lower Alloways Creek

"Township, in Salem County, was 8.8 percent African .ilmerican in 1930, 10.6 percent in 1940, and 1.4 percent in 2010. Greenwich, in Cumberland County was 34 percent African American in 1930, 31 percent in 1940, and 4.5 percent in 2010. Shrewsbury Township, in Monmouth County, 'Was 34 percent African American in 1930, 36 percent in 1940, and 14.3 percent in 2010. See U. S. Bureau of the Census, Decennial Census, available at http://www.census.gov/prod/www/abs/decennial/ (1930-1960); http://www.nhgis.org(1970-1980); http://factfinder2.census.gov (1990-2010).

- 29 -

70PW. These figures were revised, again by consent decree, in

1997 and 2006. 17

To date, Mount Laurel has constructed 477 new units of

affordable housing. See Ex. 6. This new construction includes

357 family units, in seven developments: Rancocas Pointe,

Laurel Creek, Ethel Lawrence Homes, Stone Gate, Union Mill, and

weiland developments. The result of this construction has been

a marked reduction in segregation.

Figure 1 below shows the location and number of units in

these family developments:

17 In 2007, after COAH revised its regulations and assigned Mount Laurel an additional 1421 units, Mount Laurel initiated litigation to dispute its newly calculated housing obligation.

- 30 -

RaneoeD Pointe:

52 Famllv For Sal' Units

Creek

Laurel Creek:

Figure 1

_ Ethel L_rencII Homaa:

140 Family Rantal Units

_ Tricia Meadow.:

86 Famllyfor Sale Unite

8-Famlly for Sale UnIts, 11 Family Rentaf Units mI Stone Gate, Union Mill, &

26 Family For Sale Units

Moorestown Township

Cherry Hill Township

Lumberton Township

Medford Township

Data Source: 2010 Census aase MBflS courtelY af ESRI Map Created: June 10.2011

The shaded areas in Figure 1 represent the census blocks

containing Mount Laurel units. The shaded areas also contain

market-rate homes, and the Mount Laurel units account for only a

small percentage of all residents in the shaded blocks. 'B

An analysis of the racial composition of all census blocks

in Mount Laurel containing Mount Laurel affordable developments

indicates that these blocks are more racially diverse than the

18 Census data do not permit isolation within blocks of the Mount Laurel units.

- 31 -

rest of the town, and are populated by African Americans and

Latinos at rates that more closely track the statewide

population of African Americans and Latinos. In blocks with

Mount Laurel developments, African Americans constitute 14.2

percent of all residents, and Latinos 6.4 percent. See Ex. 7.

The remainder of the town is 9.6 percent African American, and

4.2 percent Latino. Id. Thus, blocks containing Mount Laurel

units have resident popUlations that are closer to the statewide

population of African Americans and Latinos 13 .5 and 17.7

percent, respectively, see Ex. 1 -- than does the remainder of

the town. Both African Americans and Latinos a.re present in the

census blocks containing Mount Laurel developments in a greater

proportion than in the rest of the state. TheE:e statistics make

abundantly clear that Mount Laurel is more diverse today than it

otherwise would have been had these units not been constructed,

powerful testimony to the real-life impact of the Court's

ruling.

2. West Windsor Township

The data in West Windsor show even more significant gains

for African-Americans and Latinos compared to the remainder of

the municipality. In 1980, West Windsor had a total population

of 8542. It was 92.2 percent white (non-Hispanic). In 2010,

its population had grown to 27,165, and the town was 51.9

percent white. See Ex. 1. Thus, West Windsor grew by 218

- 32 -

percent between 1980 and 2010, outpacing statewide population

growth, which was 19.4 percent during this same period. Id.

During this same period, West Windsor gained 11,165 private

sector jobs, ranking it seventeenth in private sector job growth

in New Jersey. Id.

West Windsor was first sued in 198·4 regarding its

exclusionary zoning practices, resulting in a judgment

establishing its fair share at 1,619 low and moderate income

units. See Toll Brothers v. Township of West Windsor, 173 N. J.

502, 514-15 (2002). Its obligation was reduced by COAH in 1985

and again in 1986, bringing the obligation down to 592 units.

Id. However, by 2002, only 37 for sale units and 102 rental

units had been constructed, despite the construction of roughly

4500 high priced, single family homes during the same period.

Id. at 526. Toll Brothers ultimately was awarded a builder's

remedy by the Court, id. at 560-62, and went forward with a

development, Princeton Junction, that included affordable units.

Statistics from the Council on Affordable Housing indicate that,

to date, West Windsor has constructed 594 affordable housing

units pursuant to the Mount Laurel doctrine, see Ex. 6, 390 of

which were family developments. These units are accounted for

by the Avalon Watch, Estates at Princeton Junction, Walden

Woods, Windsor Haven, Meadow Lane, and Windsor Ponds

- 33 -

developments. Figure 4 depicts the locations and describe the

number and type of these Mount Laurel units in West Windsor:

- 34 -

Figure 2

Prillceton Township

Lawrence TOWIllihip

Avalon Watch: 103 Family Rental Unlt&

Eetates at Princeton Junction: 175 Family Rental Units

Waldan Woods and Windsor Haven: 38 Family 10r Sale un.~..-­

Medow Lane: 35 Family Rantal Units

For Sale Units

Plainsboro Township

CmnhllryTowusbip

East Windsor Township

.2010

. The shaded areas in Figure 2 represent the census blocks

containing family Mount Laurel units. These blocks also contain

market-rate units in the same developments, and unrelated

residential units. In other words, residents of Mount Laurel

units do not account for the entire population of the shaded

census blocks.

A comparison of the demographics of the Mount Laurel blocks

in West Windsor to the rest of the town indicates that these

- 35 -

areas of town are more diverse and, again, closer to statewide

averages for African Americans and Latinos than is the rest of

the town. Although still underrepresented relative to the

statewide population, African Americans constitute a

significantly greater proportion of residents in census blocks

wi th Mount Laurel developments 7.9 percent than in the

rest of the town, which is 2.7 percent African American. See

Ex. 8. In these same areas, Latinos comprise 6.3 percent of the

population, whereas the rest of West Windsor is only 3.9 percent

Latino. Id. Again, it is clear that, to the extent that West

Windsor has become more racially diverse between 1980 and 2010,

and that its population distribution more closely matches that

of the state as a whole, Mount Laurel developments account for a

significant portion of this change.

3. Ethel Lawrence Homes

The case studies of Mount Laurel Township and West Windsor

establish that the presence of Mount Laurel units in a census

block is correlated with population distribution that is more

racially diverse than is the town as a whole, and closer to the

distribution one would expect based on statewide averages.

Albeit anecdotal, these case studies engender proof that Mount

Laurel is responsible for making certain communities of

opportunity which Mount Laurel and West Windsor, with their

pri vate sector job growth and quality schools certainly are --

- 36 -

open to new residents, many of whom are African American or

Latino. It is also the case that Mount Laurel has allowed many

families to move from neighborhoods with low social capital to

communities of opportunity. A new, quasi-experimental study

further demonstrates the measurable and positive impact that

moving to one particular Mount Laurel development the Ethel

Lawrence Homes ("ELH") in Mount Laurel Township on residents'

economic self sufficiency, health, and on the educational

outcomes for their children.

The study draws its data from a survey of current and

former residents of the Ethel Lawrence Homes and a comparison

sample of individuals who applied for but have not yet been

selected to live in the development. See Rebecca Casciano &

Douglas Massey, Neighborhood Disorder and. Anxiety Symptoms: New

Evidence from a Quasi -Experimental Study, SSRN Working Paper

1865238 . (June 2011) (hereinafter· "Anxiety Symptoms") ."9 These

groups are alike in their desire to live in the development.

Statistics indicate that residents of ELH responding to the

survey were 67.2 percent African American and that 22.4 percent

identified as "other," a category that likely captures primarily

Latino individuals. 20 Id. After controlling for variables such

19 Available at http://ssrn.com/abstract=1865238. 20 These figures are more encouraging regarding the question of whether affordable housing units constructed in the suburbs after Mount Laurel were occupied by minority families than -those reported after analysis of New

- 37 -

as sex, age, race, educational attainment, family size, and

unmeasured characteristics that may account for propensity to be

selected for residency, id., outcomes for the two groups were

compared.

The first hypothesis tested is that "living in an

affordable housing proj ect in a middle class suburb improves a

poor person's economic prospects" relative to what they

otherwise would have experienced, and that this improvement may

be explained in part by differences in exposure to disorder and

stressful events. Rebecca· Casciano and Douglas Massey,

Neighborhood Disorder and Individual Economic Self-Sufficiency:

New Evidence from a Quasi-Experimental Study, SSRN Working Paper

1865235 (June 2011).21 The study assessed four measures of

economic self-sufficiency: total annual income from work,

receipt of income from Temporary Assistance for Needy Families,

current employment status, and percent share of income from work

rather than benefits such as social security. Id. In every

category, residents performed better on these measures of

economic self-sufficiency. Thus, residents earned $19,687 on

average compared to $12,912 for non-residents. Id. Five

percent of residents received TANF, compared with 14 percent of

non-residents. Id. Two thirds of ELH residents were currently

Jersey Affordable Housing Management Service data in 1996. Eisdorfer, 27 Seton Hall L. Rev. 1268 (1997). 21 Available at http://ssrn.com/abstract=1865235.

- 38 -

See Wish &

working for pay, compared with 51 percent of non-residents. Id.

And roughly 60 percent of residents' total annual income came

from earnings, as compared to 42 percent for non-residents. Id.

The study also measured neighborhood disorder22 and negative

life events. 23 Id. The mean weighted diBorder score for

residents of ELH was found to be nearly six times less than that

of non-residents. Id. The number of negative life events

experienced by ELH residents in the previous twelve months was

also lower than for non-residents. Id. (comparing scores of 1.77

and 2.64, respectively). The study found that exposure to

disorder is inversely related to the odds of being employed,

income from earnings, and share of income from work. Id. In

sum, ELH residents were more economically self-sufficient than

non-residents who had applied to live in the development, a

result that is directly related to the fact that ELH residents

live in a neighborhood characterized by less disorder and

resultantly -are exposed to fewer negative life events than non-

residents. Id.

The study also tested for effects of residency in ELH on

mental health. Anxiety Symptoms, supra, and found that living in

22 Indicators of neighborhood disorder include frequency of exposure wi thin the past twelve months to homeless people, prostitutes, gangs, drug paraphernalia, drug dealing, people using drugs, public drinking, physical violence, and gunshots. Id. 23 Negative life events include serious unexpected pregnancy, arrest by police, expulsion from school, loss of job, loss of

- 39 -

illness, serious injury, death, sentencing to jailor prison,

home, robbery, and burglary. rd.

· ELH positively affects mental health, and that this impact is

attributable to the fact that living in Mount Laurel exposes

residents to less neighborhood disorder than non-residents. On

average, ELH residents reported experiencing fewer anxiety

symptoms than non-residents. 24 Id. Moreover, each additional year

of living in ELH is associated with a measurable reduction in

exposure to neighborhood disorder, which in turn is associated

with a reduction iri anxiety symptoms. Id. A.nxiety and stress

negatively impact one's mental and physical health in a variety

of ways. Id.

Finally, the study tested whether moving into an affordable

housing project in an affluent suburb yields educational

benefits compared to the educations they would have received had

they not moved into the proj ect . Rebecca Casciano and Douglas

Massey, School Context and Educational Outcomes: Resul ts from a

Quasi-Experimental Study, SSRN Working Paper 1865232 (June

2011) .25 Not surprisingly, survey responses indicate that in

specific measures, the schools attended by EI,H residents were

better than those attended by non-residents. Id. (comparing

proficiency scores in language arts and mathematics of 89

percent and 82 percent for ELH residents with scores of 70

percent and 57 percent for non-residents). Thus, the average·

24 Anxiety is measured by the frequency with which respondents experienced four anxiety symptoms: trouble falling asleep, trouble relaxing I frequent crying, and fearfulness. Id. 25 Available at http://ssrn.com/abstract=1865232.

- 40 -

SAT score of students in schools attended by ELH residents was

17 percent greater than the value in schools attended by non-

resident children. Id.

The schools attended by ELH resident children were also

characterized by less violence and disorder than were the

schools attended by non-residents. 26 ELH resident children

scored on average 1.69 on a five-point school disorder scale,

compared to a score of 2.17 for nonresidents. Id. A one-unit

increase in this scale is associated with a .. 45 decrease· in a

child's GPA. Id. ELH resident children also spent on average

4.74 more hours per week reading for information or pleasure

than did non-resident children. Id. Each additional year that

children live in ELH is associated with a .78 hour increase in

reading per week. Id. And every additional hour reading per

week is associated with a .04 increase in GPA. Td.

The study also found that parents of ELH residents were

more involved in their children's education than were non-

resident parents. 27 Id. Each additional year of living in ELH

was associated with a small but significant increase in the

26 School disorder was measured by the frequency with which children were exposed, in the previous three months, to student fights, smoking, IImaking out ,11 being late for class I cutting school/shouting at or threatening a teacher or principal, pushing or hitting a teacher or p:rincipal, vandalizing school or personal property, theft of school property, consuming alcohol or drugs, carrying knives, carrying guns, and robbery of stud.ents. Id. 27 Parental invol vernent was measured by the frequency with which parents engaged in activities such as checking homework, helping with homework, involvement in the PTA, talking to other parents, and talking to their children1s friends over the past twelve months. Id.

- 41 -

degree of parental involvement, indicating that involvement may

be a cumulative process that builds over time. Id.

This study demonstrates and quantifies the positive

outcomes experienced by residents in one subu.rban Mount Laurel

development. In so doing, it illustrates the gains that are

realized when the vision of Mount Laurel, that communities of

opportunity not be foreclosed to entire classes of people,

including African Americans and Latinos, see Mount Laurel I, 67

N. J. at 174, is realized. That is, where implemented, Mount

Laurel has not only resulted in an increase in racial diversity,

but has also had a substantial and profound impact on the lives

of those who have been able to move away from "urban ghettos,"

Mount Laurel II, 95 N.J. at 209, to communities of opportunity

as a result of these developments. As Helen Hodges, a teacher's

aide in Trenton who moved with her two teenage sons into a two­

bedroom condo at the Lawrence Square Village development in

Lawrence Township, stated, articulating the impact of Mount

Laurel on the lives of so many. families: "That first night I

just kept wanting to pinch myself. I just worked up till the

time it got dark and then relaxed and enjoyed myself knowing I

was away from the drugs in the city." Anthony DePalma, Mount

Laurel: Slow, Painful Progress, N.Y. Times (May 1, 1988).

- 42 -

III. THE MOUNT LAUREL DOCTRINE CONTINUES TO BE NECESSARY TO ADDRESS ONGOING SEGREGATION IN NEW JERSEY TODAY

Despite the marked success of the Mount I,aurel doctrine in

some regions and for a number of New Jersey families, its

implementation has been gradual, in part by design and in part

because of resistance and questionable methods of

implementation. New Jersey in fact continues to face persistent

racial segregation as a result of exclusionary zoning

regulations, highlighting the need for continued and

strengthened commitment to the Mount Laurel doctrine.

A. The Mount Laurel doctrine has no't been fully or consistently implemented in New Jersey to date.

Despite its successes, to date the Mount Laurel doctrine

has not been fully or consistently implemented in New Jersey.

As a result, the impact of the doctrine on housing segregation

has been diluted, highlighting the need for more -- not less --

vigorous implementation.

First, as embodied by the FHA, the Mount Daurel doctrine is

intended to be implemented over time, with gradual progress in a

series of "rounds" instead of a wholesale removal of all

exclusionary barriers. See Mount Laurel I, 67 N.J. at 191

(citing need for "proper planning" to "prevent over-intensive

and too sudden development"); Mount Laurel II, 92 N.J. at 224-25

(emphasizing need for "sound planning" in reference to State

Development Guide Plan) . Thus, the FH}, mandates that

- 43 -

prospective need be determined for a period of years, see

N.J.S.A. 52:27D-307(c) (1) (requiring computation of need for 10

year period), indicating that the Legislature expects that

housing needs be met over time. The FHA also allows

municipalities to "phase in" the achievement of their fair share

over time, according to schedule, N.J.S.A. 52:27D-311(b), or

reduce its obligation upon a showing that the number of units

calculated as the municipalit~ s fair would amount to an

overnight, "drastic alteration" of the town as a whole, N.J.S.A.

52 :27D-307 (c) (2) . As a result, the full impact of Mount Laurel

has only begun to be realized in New Jersey, as illustrated by

the successes documented supra Part II.

The Mount Laurel doctrine has also faced persistent

resistance from several quarters, perpetuating segregated

housing patterns and demonstrating the need for a strengthened

commitment to the Mount Laurel doctrine. For example, from the

time of Mount Laurel I to Mount Laurel II, very little progress

was made in implementation, as Mount Laurel II found "widespread

non-compliance," with Mount Laurel I's constitutional mandate.

92 N.J. 158, 199 (1983). The legislature d:i.d not act until

1985, when it enacted the Fair Housing Act of 1985 ("FHA"),

N.J.S.A. 52:27D-301 to -329. More recently, the Council on

Affordable Housing delayed for over five years the adoption of

updated rules, which were to set forth the "fair share"

- 44 -

obligations of municipalities going forward. See In re Six

Month Extension, 372 N.J. Super. 61, 95-96 (App. Div. 2004)

(noting "dramatic and inexplicable" delay in updating

calculations of present and future need such that "the public

policies underlying the FHA and the Mount Laurel cases have,

quite obviously, been frustrated by ina.ction") . Some

municipalities have also contested attempts to implement the

doctrine in their locality. See, e.g., Toll Brothers, Inc. v.

Township of West Windsor, 173 N.J. 502., 515-24 (2002)

(recounting litigation history dating from 1984); see generally

Mount Laurel II, 92 N.J. at 200 (observing that "the length and

complexity of trials is so high that a real question develops

whether the municipality can afford to defend or the plaintiffs

can afford to sue").

Finally, some aspects of Mount Laurel implementation, under

the FHA and COAH regulations, have arguably have been of little

help, and have likely been counterproductive, at least to the

desegregation aspects of the Court's mandate. Most clearly in

this category is the provision for Regional Contribution

Agreements ("RCAs") introduced in the FHA. These agreements

were "intended to allow suburban municipalities to transfer a

portion of their obligation to urban areas thereby aiding

in the construction of decent lower income housing in the area

where most lower income households are found," Hills Dev't Co.,

- 45 -

103 N.J. at 38 (citing statement of legislative intent in § 12d

of FHA) (emphasis added). Although the Court upheld the FHA

generally against constitutional challenge, see id., as-applied

challenges were raised to the certification of the development

plans of certain municipalities on the grounds that particular

RCA would contribute to racial segregation. See, e. g., In re

Township of Warren, 247 N.J. Super. 146, 156 (1991)

(unsuccessful challenge to transfer of affordable housing units

to New Brunswick on grounds that RCA would "perpetuate racial

stratification); In re Township of Denville, 247 N. J. Super.

186, 193-94 (unsuccessful challenge to town's PCA with Newark on

grounds that it would result in "undue concentrations of

minorities") The Legislature eventually abandoned PCAs, see L.

2008, c. 46 (modifying N.J.S.A. 52:27D-312), yet a substantial

amount of development took place under such agreements. Prior

to the abolition of RCAs, the obligation to develop more than

10,000 units of affordable housing outside of distressed

municipalities was transferred to distressed, segregated, and

predominantly urban municipalities. 28 As a result, in these

instances at least, the potential for Mount Laurel housing to

result in actual desegregation was dramatically undermined.

28 See Council on Affordable Housing I Approved RCAs, available at http://www.state.nj.us/dca/affiliates/coah/reports/rcas.xls.

- 46 -

B. Housing segregation is a continuing and persistent concern in New Jersey.

Not surprisingly given the piecemeal implementation of the

Mount Laurel doctrine to date, New Jersey in fact continues to

face persistent racial segregation as a result of exclusionary

zoning regulations. This ongoing segregation, in combination

wi th the successes that have been achieved where implementation

has occurred, demonstrates the importance of a continued

commitment to the Mount Laurel doctrine.

As discussed infra Part IV, New Jersey continues to rely

heavily on exclusionary zoning restrictions. At the same time,

and consistent with the findings of Rothwell and Massey, supra

Part II.A, New Jersey has experienced desegregation at a slower

rate than the rest of the nation. Figure 3 and Figure 4

illustrate this trend using the dissimilarity index29 for African

Americans and Latinos, respectively:

29 The dissimilarity index measures the degree to which a group is evenly distributed across census tracts. A score of 70 or highE~r represents what is considered extreme segregation.

- 47 -

Figure 3

Segregation of African Americans, 1970 - 2010

80

~ ';: .!!! ____ New Jersey E 70

'iii -<- National en i5

60

1970 1980 1990 2000 2010

Year

Figure 4

Segregation of Latinos, 1970 - 2010

80~. 70

~ ';: .!!! ____ New Jersey E 60 'iii -+-- National en i5

50

1970 1980 1990 2000 2010

Year

- 48 -

Thus, between 1970 and 1980, New Jersey actually grew more

segregated with respect to the African American community, as

the rest of the country grew less so. 30 since then, statewide

segregation has grown less extreme, though it still remains

high, and is higher than in the nation as a whole for both

African Americans and Latinos even though, at least for

African Americans, New Jersey had histo:dcally been less

segregated than most of the rest of the nation.

Furthermore, many of New Jersey's large urban areas remain

more segregated than the rest of the state. For example, the

African American dissimilarity index for the Newark-Union

metropolitan area was 78 in 2010, compared with 66.9 statewide;

for Latinos, it was 62.6, compared to 58.1 statewide. See Ex.

2. The index for the Trenton metropolitan area in 2010 was 62.8

for African Americans, and 55.6 for Latinos. Id. These scores,

which indicate the percentage of people within a group who would

have to move in order to create an even or proportional

30 Data do not allow for a reliable calculation of the nationwide dissimilarity index for Latinos in the year 1970. This is true because the United States Census Bureau used different measures of capturing Latino ethnicity nationwide. The figure for New Jersey is considered reliable for this same period because Puerto Ricans, who accounted for the majority of the Latino population in the Northeast, were, captured by the "Spanish Origin" question. See generally Campbell Gibson and Kay Jun9, United States Census Bureau, Historical Census Statistics on Population Totals by Race, 1970 to 1990, and by Hispanic Origin, 1970 to 1990 (2002) , available at http://www.census.gov/pppulation/www/documentation/twps0056/twps0056.html. Individuals from Puerto Rico, who constituted the first significant wave of Latino settlers in New Jersey, migrated in numbers between 1950 and 1970. See Jorge Duany f BLURRED BORDERS: TRANSNATIONAL MIGRATION BETWEEN THE HISPANIC CARIBBEAN

AND THE UNITED STATES (2011).

- 49 -

distribution of racial groups, are in the high and near the

extreme range.

Thus, while the Mount Laurel doctrine has been a marked

success in those areas where it has been actually implemented,

the data on racial segregation and the isolation of African

American and Latino communities in New Jersey indicates that

there is much more work to be done. COAB' s "growth share"

methodology is, however, ill-suited to address New Jerse~ s

persistent segregation problems.

IV. "GROWTH SHARE" MUST BE REJECTED BECAUSE IT VESTS UNFETTERED DISCRETION IN THE VERY SAME MUN.ICIPALITIES THAT HAVE PROVEN HOSTILE TO OPENING THEIR COMMUNITIES TO NEW JERSEYANS OF ALL RACES AND CLASSES.

The continuation of gains of the type seen in

municipalities such as Mount Laurel and West Windsor is

threatened by the "growth share" methodology adopted by COAR and

at issue in this litigation. Under t:his approach for

determining a municipality's fair share allocation of affordable

housing under the Mount Laurel doctrine, "a municipality is not

required to provide a specific predetermined number of

affordable housing units but only to provide additional

affordable housing if job or residential growth actually occurs

in the municipality." In re N.J.A.C. 5:96 and 5:97,416 N.J.

Super. 462, 474 (App. Div. 2010). This calculus allows a

municipality to avoid any affordable housing obligation by

- 50 -

adopting .xestrictive land use

discourage growth.·

and other regulations that

The Appellate Division twice rej ected COAH' s growth share

approach because, in both iterations, it provided no meaningful,

minimum affordable housing obligation, see Tn re N.J.A. C. 5:96

and 5:97, 416 N.J. Super. at 480-81 (noting that despite a

nominal minimum r·equirement, none exists because the obligation

arises "only when and to the extent that growth occurs"), In re

N.J.A.C. 5:94 and 5:95, 390 N.J. Super. at 68 (finding no

assurance that growth share would actually meet the need for

affordable housing), and placed too much discretion in the hands

of municipalities, see In re N.J.A.C. 5,96 and 5:97, 416 N.J.

Super. at 482-83 (describing ways in which municipality can

avoid obligation), Tn re Adoption of N.J.A.C. 5:94 and 5:95, 390

N.J. Super. at 55-56 (rejecting growth share methodology because

it fails to "place some check on municipal discretion") .

Both past experience and present zonin9 patterns indicate

that unfettered discretion will at least stall and may very well

reverse the gains that have been made in the provision of

affordable housing in New Jersey, t.o the particular detriment of

African American and Latino communi ties, which, as discussed

above, are concentrated in municipalities that are resource poor

and lacking in economic and educational opportunity. See supra

Part LB. Specifically, past experience shows that

- 51 -

municipalities do not, on their own, in fact undertake to

provide affordable housing. Rather, many municipalities have

vigorously contested the application of the Mount Laurel

doctrine to their circumstances, expressed in particular by

exclusionary zoning that seeks to prevent high density

development and thus, almost by definition, affordable housing.

Thus, towns wishing to avoid any affordable housing obligation

can simply follow present, highly exclusionary zoning

regulations and accordingly slow their growth. Under these

circumstances, a growth share approach would exempt them from

making changes to these regulations, no matter how exclusionary,

how hostile to affordable housing, or how grounded in

discriminatory or even segregationist intent.

West Windsor Township illustrates this point. As a result

of the construction of Mount Laurel units, West Windsor is more

racially diverse today than it otherwise would have been, as

discussed in detail above. West Windsor is located along the

Route 1 corridor between Trenton and New Brunswick, which has

been identified as a "major area of development" for the coming

decade. New Jersey Dep I t of Transportation, Route 1 Regional

Growth Strategy Final Report 6 (Sept. 2010) (hereinafter "Route

1 Report") 31 Within this region, West Windsor is in a subregion

wi th "the strongest overall private sector," by virtue of its

31 Available at http,//policy.rutgers.edu/vtc/rgs/.

- 52 -

location near Princeton University and related research

institutions. Id. at 9. Fifty-six percent of the land in West

Windsor is undeveloped, Route 1 Report, Appx. J, indicating

ample availability of property for residential and commercial

development. However, most of the non-commercial land in West

Windsor is zoned for low-density development that would exclude

all or almost all Mount Laurel development: currently, 77.3

percent of available land is zoned for "low" or "very low"

density development. 32 Id. By contrast, only 2.4 percent of land

in West Windsor, as currently zoned is allocated to multi-family

development. 33 Id. Given this zoning reality, only a small

amount of large lot, relatively expensive housing will be

produced; and, under a growth share approach, because relatively

little housing will be produced and thus little growth will take

place, West Windsor will likely not be obliga.ted to produce many

-- if any -- affordable housing units. See also John Hasse, et

al., Evidence of Persistent Exclusionary E.ffects of Land Use

Policy within Historic and Projected Development Patterns in New

Jersey: A Case Study of Monmouth and Somerset Counties 18, 20

(June 2011) (hereinafter "Evidence of Persistent Exclusionary

Effects") (indicating that only 2.7 percent of land in Monmouth

32 Low density is defined as zoning that allows for between 1.1 and 2 development units per acre, and very low density is defined as zoning that allows for less than one development unit per acre of land. Route 1 Report, Appx. J. 33 Multi-family developments are those with eight or more development units per acre. Route 1 Report, Appx. J.

- 53 -

County and 1 percent in Somerset County is zoned for high

density development of 5 or more units per acre). 34 Furthermore,

even the miniscule amount of existing multi-family zoning

reflects yet-to-be-built Mount Laurel development, that zoning

and with it, that development would be at risk,

notwi thstanding the notable progress that West Windsor has made

as a result of its implementation of the Mount: Laurel mandate.

That said, significant economic development is slated for

the area. Id. (projecting that under build-out of existing

zoning in town, 46,084 new jobs will be located in West

Windsor) . Comparing the number of projected jobs to the

increase in population produces a ratio of 20.99 jobs per person

to be accommodated by additional housing development. Id. Such

a high ratio indicates that many people who work in West Windsor

will not be able to live there. Id. at 13.

West Windsor is hardly unique in :this regard. In

Middlesex, Mercer, and Somerset Counties, which are all wi thin

the same Route 1 corridor, the percentage of land zoned for

multi-family development is just 1.82 percent of all land zoned

for residential use. Route 1 Report, Appx .• J (414 acres out of

22,805) . The ratio of projected economic growth indicates that,

under current zoning in these counties, 13.19 jobs will be

34 Available at http://gis . rowan. edu/proj ects/ exclusionary/exclusionary"_zoning_final_draft_20 ll0610 "pdf.

- 54 -

created for every person accommodated by housing growth. Id. ;

see also Evidence of Persistent Exclusionary Effects, supra at

19, 21 (projecting that development under current zoning will

produce one home for every 6.74 jobs generated in Monmouth

County and one home for every 16.7 jobs generated in Somerset

County)

This is precisely the scenario that Mount Laurel was

intended to address. Indeed, the allocation of land to low-

density, exclusionary zoning is not much different today than it

was when Mount Laurel I was decided. The liiTilliams and Norman

study found that in the four counties lining the western edge of

the New York-New Jersey metropolitan area (Middlesex and

Somerset, which are also included in the Route 1 corridor study,

plus Morris and Monmouth), less than one percent was zoned for

multi-family use. Williams & Norman, 22 Syr. L. Rev. at 485 .

The picture in Middlesex, Somerset, and I~ercer counties is

slightly better but still dismal, as under two percent of all

land is zoned for multi-family development .. These counties,

like those studied by Williams and Norman, are expected to

generate many new jobs in the coming years. But unless they are

required to build affordable housing, all indications are that

it will be "impossible for lower paid employees" to "live in the

communities where they work." Mount Laurel I, 67 N.J. at 172.

- 55 -

In other words, current zoning regulations will limit

opportunities for the poor, among which African Americans and

Latinos are overrepresented, to access to these communities of

opportunity. Without the provision of affordable housing, which

is unlikely to be built under current zoning regimes, there will

be very little migration of families from densely populated,

resource-poor communities into areas where a better quality of

life may be realized and where many of them can and will find

work, because they simply will not be able to afford to live

there. And, without such internal migration, New Jersey will be

locked into the existing, highly segregated residential patterns

"that so disfavor and disadvantage the African American and

Latino communities.

CONCLUSION

The Mount Laurel doctrine seeks not only to address

exclusionary zoning, but also the still pronounced problem of

racial segregation in New Jersey by requiringr communities across

the State to provide a fair share of the affordable housing

needs of the region. The doctrine thus advances racial equality

by providing individuals who currently live in poor," urban areas

who are disproportionately African American and Latino -- the

ability to move to communities with far greater educational and

economic opportunities that those afforded to them in their

communities. Where Mount Laurel has been implemented, it has

- 56 -

increased racial diversity, decreased' segregation, and improved

the quality of life for individuals and families. The Appellate

Division rightly rejected these regulations, and its remedy of

returning to the prior regulations, which produced the

measurable gains in opening communities of opportunity and

reducing racial segregation in those locations. COAH' s proposed

regulations, which rely on a growth share methodology, threaten

these gains,

historically

by vesting discretion in municipalities who

have resisted high density development and

integration, to determine whether and to what extent they will

provide affordable housing, by tying their obligation to future

development, without requiring any changes in existing zoning.

But studies demonstrate that exclusionary zoning practices,

which are widespread in New Jersey today just as they were at

the time of Mount Laurel I, not only fail to allow the

development of affordable housing" but also operate to slow

growth generally. The Court should uphold the Appellate

Division's rej ection of this methodology or consign itself to

leaving another generation of African American and Latino New

Jerseyans isolated, and living in highly segTegated communi ties

because they are denied affordable housing elsewhere.

- 57 -

Dated: June 15, 2011

Respectfully submitted:

-k.(~~b ~. Lawrence S. Lustberg, Esq. Eileen Connor, Esq. Gibbons P.C. One Gateway Center Newark, New Jersey 07102-5310 (973) 596-4500

Counsel for Proposed Amici Curiae

- 58 -